Supreme Court Takes Nike Free Speech Case

MacAndrew writes "The Supreme Court has granted review in a case previously discussed here that could lead to a landmark decision regarding "commercial speech." The California Supreme Court had ruled that Nike's statements denying the use of sweatshop labor in Asia could be challenged under the state's strict truth in advertising laws, under which truth is not a defense if a statement's context is deemed misleading, First Amendment notwithstanding. The California court essentially rejected Nike's claim to heightened political speech protection -- which would have allowed the company to raise defenses of truth and due care -- reasoning that Nike's statements were calculated to induce product purchases and thus commercial speech. The U.S. Supreme Court's consideration of this case provides a clear opportunity to reconsider the controversial political-commercial speech dichotomy in constitutional law. It is essential to bear in mind the question at this point is not whether Nike did anything wrong, rather to determine the standards by which it will be judged. The commercial speech question relates to many, many topics discussed here, such as telemarketer DNC lists, telecom disclosure of customer calling data, spam, spam, and spam."

Comments

Re:Commercial Speech

[squiggleslash]

"Commercial Speech" is short-hand for words used in the sphere of trading. If we had no restrictions upon it, then there wouldn't be such a thing as "fraud", for example. Indeed, that's exactly what the Nike case is about.

Commercial speech not the only example of areas where speech is limited. You can't lie in court either.

Corporations should not have free speech

[release7]

The constitution did not grant the right of free speech to corporations. It wasn't until the late 1800s did a court ruling determine that corporations were people and thus were entitled to the same rights as flesh and blood citizens.

Corporations are supposed to server the greater good. But the drive for profit at all costs does not serve society well at all; it serves only a handful of shareholders looking to make a return on an investment. It's absurd to give powerful corporations the right to flagrantly violate laws of human decency in order to improve the bottom line.

Re:Corporations should not have free speech

[MillionthMonkey]

This is insightful? Jesus, read the fucking constitution sometime.

"Congress shall make no law..." Does NOT Distinguish between corporations and people.

People here are confusing the two issues (corporations/persons vs. commercial/protected speech). This really has nothing to do with the fact that Nike is a corporation. The same rules apply to an individual selling shoes at a street corner.

The confusion here partially results from the fact that Nike is the most evil of evil corporations, run by penny pinching demons from the underworld that take delight in human misery and suffering. (See? I just made a statement of fact that is most likely incorrect in certain details, but I can do so because it is an example of political speech.) Nike might respond with an assertion that no, Nike was founded by angels descended from heaven who dreamed of bringing exciting new careers to the Third World while putting quality footwear on the tired feet of American consumers everywhere. This would also be a misleading statement, containing factual errors. But would its response be political speech or commercial speech? It's a retort to a political attack I made earlier, so you'd say it's political speech. If anything Nike says could be considered political speech, it is this. However, Nike also has an obvious interest in selling its shoes, and its response will further that interest. So maybe this is commercial speech, right? The court actually bought into that argument. However, the nature of the speech is the real issue, not the nature of the speaker. If you agree with the court that this is commercial speech, you are implicitly saying that Nike is only capable of commercial speech because it makes a profit. The same rules will then apply to the guy selling shoes on the street corner. I'm an honest businessman is no longer protected as political speech according to the court's new standard. (Remember, the distinction between corporations and individuals that keeps coming up here isn't legally relevant.) So this is why you see groups like the ACLU jumping up and down and howling about this.

Typical, a bunch of slashdot posters oppose free speech.

You're painting with a broad brush. None of this is an argument against the restrictions on commercial speech itself. Free speech absolutism is foolish if applied blindly without judgement to all situations involving speech (e.g. spam, etc.). A statement by Nike that wearing Nike shoes has been proven by scientists to lengthen your penis is commercial speech. Nike has a protected right to say this, but they have to include a disclaimer like (results not typical) or something like that. Restrictions on commercial speech are old, older than you are, and you disparage them only because you aren't old enough to remember what life was like without them. Rolling back the restrictions on commercial speech would mean kissing "Results Not Typical" goodbye. The same goes for those fake newspaper ads about wonder diets that say "ADVERTISEMENT" at the top. Freedom of speech doesn't give you the right to lie to people and rip them off. Unless of course, you're in politics.

Let Nike strike back...

[Will_Malverson]

It boils down to this: Activists said misleading (but not legally false) things about Nike. Nike responded to those unkind statements with "misleading" (but not legally false) statements. Nike is in trouble for "misleading" commercial speech.

"Commercial speech" is...what, exactly? Speech designed to tell you how to spend your money. Perhaps the activists' speech is also therefore commercial speech. If it's truly misleading, then the activists in question should be held accountable for it.

Re:Commercial Speech

[UpLateDrinkingCoffee]

Today it's "corporate free speech"... will it be the "corporate right to keep and bear arms" tomorrow? I think another poster had it right, corporations exist to serve the public good. Since they are entities created by law, then all their rights come from the law, not from the constitution. Considering them "persons" under the constitution is ludicrous.

Re:Commercial Speech

[Photon Ghoul]

Question. If a corporation is responsible for the deaths of others can it be put it to death (and I don't mean being put out of business - there's no correlation between that and human loss of life)? Can a corporation be charged with treason? Can a corporation vote? Does it have feelings? Is it born with inalienable rights? Can a corporation be drafted?

Stop anthropomorphizing businesses.

Re:Commercial Speech

[gaijin99]

Actually, Bitgeek, you've missed a fairly large and important bit of the Ammendments to the Constitution. They apply only to citizens.

Animals are not citizens, thus are not protected by the constitution. Koko the gorilla, as an example, is not granted free speach rights. The big question is: are corporations citizens? Do they deserve the same rights that are accorded to real people?

Similarly, until slavery was declared illegal, the Constitution did not apply to slaves. Their rights to free speach, trial by jury, etc were not being violated because officially they were not citizens.

Obviously this was not a good thing, and later the Constitution was ammended to outlaw slavery, at which time blacks became legally entitled to the same rights as any other citizen (though this was not enforced everywhere....)

So, no, this is not a simple open and shut case. If corporations are not citizens (and, I for one don't see how they can be counted as such), then they are not entitled to First Ammendment rights.

Also, regarding "communism", I would like to point out that such noted communists as George Washington, Thomas Paine, and Thomas Jefferson fought to have an 11th ammendment added to the original ten that would has specifically required all corporations to serve the public good, as well as specifically barring them from influencing politics in any way, shape, or form.

I'm a First Ammendment fantic, but I don't think it applies to corporations.

Le sigh

[Dannon]

truth is not a defense if a statement's context is deemed misleading

My strict translation of this phrase: Even if what you said was the strict, factual truth, if anyone thinks you were lying, you've broken the law.

Heaven save us from fools with lawyers.

Re:Support the Bill of Rights!

[Photon Ghoul]

Your endless braying has got to stop. Please?

Your points are not helped by name-calling and misleading comments.

It never ceases to amaze me how few liberals respect the Bill of Rights, or basic human rights.

That statement is so utterly false. It's sort of like me saying that conservatives have no respect for the dollar bill.

"sweatshop" is probably a meannigless term to you because you have never been poor. And liberals hating the poor? Okay, let me come back at you and say that conservatives hate the rich. Laughable isn't it?

Oh, and you might be modded down, not because of your views (notice that there *are* civil-acting conservatives on Slashdot quite regularly) but because you are screaming on and on incessantly. Like your neighbors dog that barks all night long while you're attempting to get some much-needed sleep.

Cogent? Apparently conservatives (apologies to the intelligent conservatives out there, I don't mean this directed at you) never took English 101.

Corporate speech is individual speech

[Paul Johnson]

If opinions are "commercial" speech then it becomes very difficult for you to express an opinion on any company in which you have an interest, especially if that interest is positive. It will be considered to be "advertising". This makes inroads into the free speech of individuals by affecting what they are allowed to say on certain topics, and will also have a chilling effect because of the broad legislation under which such speech could be prosecuted.

The alternative is that companies will be able to say anything outside of "advertisements" without fear of being prosecuted. I don't see this as a problem. If they lie, someone else can tell the truth. Provided that the company isn't paying for coverage (a good definition of advertising) then access for the little guy isn't the problem.

Paul.

Re:Support the Bill of Rights!

[Chops]

Since "sweatshop" is a completely meaningless, derogatory term, Nike is being honest when they say they don't have any-- even if liberals say they do.

This is exactly the same situation as Nike saying "We make fine quality shoes" and liberals suing them because they insist their shoes are not fine quality and that Nike was deceptive in claiming they were.

Simply incorrect -- Kasky pointed to what he claimed were factual inaccuracies in Nike's statements. To wit:

The complaint alleges that, in the course of this public relations campaign, Nike made a series of six misrepresentations regarding its labor practices: (1) "that workers who make NIKE products are . . . not subjected to corporal punishment and/or sexual abuse;" (2) "that NIKE products are made in accordance with applicable governmental laws and regulations governing wages and hours;" (3) "that NIKE products are made in accordance with applicable laws and regulations governing health and safety conditions;" (4) "that NIKE pays average line-workers double-the-minimum wage in Southeast Asia;" (5) "that workers who produce NIKE products receive free meals and health care;" and (6) "that NIKE guarantees a ' living wage' for all workers who make NIKE products." In addition, the complaint alleges that NIKE made the false claim that the Young report proves that it "is doing a good job and ' operating morally.' "

And on the sweatshop thing-- the liberals hate sweatshops because they hate the poor. They'd ratehr that someone who makes $5 a day sewing shoes for Nike be reduced to making $1 a day scavaging rusted cans, or whatever. ...

Because Liberals apparently never took economics.

This is kind of tangential to the central question -- whether Nike should be allowed to baldly lie in press releases -- but what the hell. I took econ. Here's how I see the situation: World labor is a buyer's market. The world has a copious supply of misery, poverty, starvation, and need. That means that when corporations go shopping for labor, it doesn't take much searching to find a land so destitute that people will beg to work for twelve hours a day in a toxic cess. There are so many poor countries, in fact, that only the really wretched ones get blessed with factories, and even they have to lower their expectations significantly (this is referred to as "racing to the bottom.")

Now the demand for labor is roughly inelastic -- Nike isn't just going to fold up and stop making shoes if it suddenly has to pay its workers a living wage; it'll just make less of a profit, and the rusted can scavenger you're so concerned about will make more money, which was what you wanted, right?

Recognition of the imbalance in the labor market (there are many more workers than companies seeking employees, and so competition on the worker's side is fiercer) guides American labor laws, which prevent workers from working for slave wages or in toxic factories even if they "want to" (i.e. are being forced to by market conditions) -- these policies don't ignore economics; in fact, they recognize and correct economic realities which you're ignoring.

you're trying to shut me up, just like liberals always do

I honestly have no idea what to make of this business about "liberals." Can you please give me an example of a liberal viewpoint that is correct, i.e. one that you agree with?

If you can't, which do you think is more likely: (a) That the liberals have managed to arrive reliably at the wrong answer to every problem they have ever been presented with, or (b) that something else is going on?

If (b), what?

Got it in one

[vandan]

This is one of the central problems with capitalism.
Corporations should ONLY have rights when those rights don't conflict with the rights of any other person, animal or plant on the planet. We are alive. They are constructions supposedely build to better our environment.
Note the word 'capitalism'. The capital has all the rights. This must change if we are to survive.

Re:Check this out if you care about the issue

[vandan]

After having read many of your posts on this topic, I have come to the conclusion that you are a rich bastard trying to protect the masses from reclaiming what is rightfully theirs.
You probably also work for Nike.

And what exactly is wrong with the ideals of socialism, anyway. Socialism asserts the rights of individuals over corporations, as opposed to capitalism, which asserts the rights of corporations over individuals.

Now there have been more than one instance of oppressive regimes operating under the guise of socialism that the world would probably have been better off without. North Korea, for example. But then there are a lot of instances of oppressive regimes operating under the guise of capitalism that the world would probably have been better off without. The US, for example. Ignoring these real-world examples, and focusing on ideals, socialism wins hands-down to capitalism, except if you are a corporation, or a rich bastard who has clawed his way to the top of the corporate world.